Trump’s Big Law Attacks Pose Quandary for In-House Counsel

President Donald Trump’s battle against a growing number of large US law firms has left many in-house lawyers on the sidelines, mulling how best to support their colleagues in private practice without drawing their companies into the fire.

A brief filed Tuesday supporting Perkins Coie in its lawsuit against the Trump administration highlights the dilemma for in-house counsel, whose employers are Big Law clients. The 67 law department leaders who signed the brief used to work at companies like Airbnb, Apple, Marriott, Oracle, Starbucks, and Warner Bros. Discovery, and are mostly retired or not currently in a C-suite.

More than a dozen current and former legal chiefs told Bloomberg Law they wish to stay behind the scenes because they don’t want to bring scrutiny to their companies for fear the White House will retaliate. Lawyers who did put their names and prior work affiliations on the brief in the Perkins Coie case said they understood the reluctance of their in-house colleagues.

“No company wants to get pulled into the madness,” said Teri McClure, a retired top lawyer for United Parcel Service, who signed the Perkins Coie brief.

McClure said in retirement she’s not beholden to the pressures that have many current legal group leaders keeping their heads down and hoping the tempest passes. “I chose to speak on my own behalf because I believe that it is the right thing to do, and silence makes you complicit in the wrongdoing,” she said.

Randal Milch, a retired former general counsel at Verizon Communications Inc. who supports Perkins Coie, said he wouldn’t have added his name to the brief if he was still working in the corporate world.

“What’s the upside?” Milch said. “I’m much more forgiving about the realities these folks face.”

For Milch, and hundreds of other in-house lawyers who anonymously signed an open letter making the rounds on social media, the rationale for pushing back against Trump’s Big Law broadsides is simple.

“The government doesn’t get to choose clients’ lawyers,” Milch said.

Big Law Backlash

Law firms that have chosen to settle—rather than sue—over the Trump orders must reckon with how clients interpret those agreements. Jason Winmill, a consultant to law departments, said companies are aware of the relationships between their outside counsel and government regulators. The current political climate could affect who those clients hire going forward.

Winmill said the loyalties that some companies have to certain firms could be tested as they grapple with how best to achieve their business and legal objectives. Judy Lao-Klinker, a legal operations director at Prologis who started her career at Jenner & Block, which is suing the government, said it can be challenging for clients to move work from a longstanding firm.

“That’s a question that a lot of people are probably asking themselves: ‘At what point does the dollar dictate your business practice and vice versa,’” she said.

Richard Ziegler, a former Jenner management committee member who signed the Perkins Coie brief as a retired general counsel for 3M, said he admires the “courage to resist” of his former firm and others. He also doesn’t condemn firms that cut deals with Trump.

“We are living in a real-world episode of the prisoner’s dilemma, in which the firms would benefit from collective resistance, but as classic game theory predicts, some will choose individual acquiescence,” he said. “The courageous firms are energizing their lawyers, staff, and at least some clients, despite the prospect of some financial cost, and I hope that strengthened commitment and loyalty will lead them to outperform their timorous peers in the longer term.”

Noah Hanft, a former general counsel at Mastercard Inc. who also signed the Perkins Coie brief, said it’ll likely be more of a “wash” for firms that settle.

Companies eager to appease or work with the administration may seek them out, offsetting lost clients, he said. Hanft said if Big Law had been more proactive earlier this year, firms could’ve established joint defense agreements, aligning together to work toward a common resolution.

Taking a Stand

A. Douglas Melamed, who once led the antitrust practice at Wilmer Cutler Pickering Hale and Dorr, which is also fighting the administration, is another amici in the Perkins Coie case as a former top lawyer at Intel Corp.

“Trump’s assault on lawyers and the rule of law is having an effect,” he said. “The only way to resist the intimidation effectively is to stand together in defense of the rule of law by representing one another, signing amicus briefs, and not poaching clients and lawyers of targeted firms.”

If Trump’s orders can destroy firms before litigation plays out, including those that could be punished for bringing allegedly frivolous litigation against the government, the administration will secure a major victory in neutering an obstacle to any of its future actions, Melamed said.

“As in other authoritarian movements throughout history, lawless government succeeds when private sector entities choose passive compliance instead of coordinated resistance,” he said.

Jon Zieger, a former general counsel at Stripe Inc., said that if lawyers at “some of the most powerful and privileged positions” in the country can’t be bothered to take a stand, who will? He said legal chiefs should move work to firms fighting the government, rather than capitulating to it.

Several in-house lawyers said they expect to see those firms making deals with Trump to lose business later this year after the current chaos has subsided and companies work through their internal processes.

“Clients are making decisions on where to send legal work based on the firms’ responses to the executive orders,” said McClure, who spent almost 25 years as an attorney and executive at UPS. “As I told my boards, where a company or law firm stands on these issues in the end boils down to leadership. The leaders in these organizations are showing their true colors by how they respond.”